Opinion
# 2013-041-049 Claim No. 118329 Motion No. M-83699
09-27-2013
BRUCE SWEEPER v. THE STATE OF NEW YORK
Synopsis
Service of claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant.
Case information
UID: 2013-041-049 Claimant(s): BRUCE SWEEPER Claimant short name: SWEEPER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : The caption is amended to state the only proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 118329 Motion number(s): M-83699 Cross-motion number(s): Judge: FRANK P. MILANO BRUCE SWEEPER Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Anthony Rotondi, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: September 27, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim based upon claimant's alleged failure to properly serve the claim upon the Attorney General. In particular, defendant has submitted proof that the claim and amended claim were each served upon the Attorney General by regular mail. Claimant acknowledges that the claim and amended claim were served by regular mail.
Court of Claims Act § 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1320).
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).
The defendant's motion is granted and the claim is dismissed.
September 27, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed July 10, 2013;
2. Affirmation of Anthony Rotondi, dated July 10, 2013, and annexed exhibits;
3. Claimant's Answer to Motion to Dismiss, sworn to August 20, 2013.